Piezo Manufacturing Corp.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V THE REMEDY Since it has been found that the Company has committed certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Company discriminated with respect to the hire and tenure of employment of Matt Baldwin, Richard Quatier, and Merle Quatier by discharging them because of their union and concerted activities , it will be recommended that the Company offer to each of the above named employees immediate and full re- instatement to his former or substantially equivalent position without prejudice to his former rights and privileges, and make each whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of as sum of money equal to the amount he would normally have earned as wages, from the date of his discharge until his reinstatement as ordered above, less his net earnings during this period The loss of earnings shall be computed in accord- ance with the formula of the Board in F W Woolworth Company, 90 NLRB 289. It is also recommended that the Company be ordered to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of earnings due The unfair labor practices found to have been engaged in by the Company are of such a character and scope that in order to insure the employees their full rights guaranteed them by the Act it will be recommended that the Company cease and desist from in any manner interfering with, restraining, and coercing its employees in their rights to self-organization Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following CONCLUSIONS OF LAW 1 Aluminum Workers Council, of The Dalles, Oregon, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act, which admits to membership employees of the Company 2 General Engineering, Inc, and Harvey Aluminum are a single employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 By discriminating in regard to the hire, tenure, and conditions of employment of Matt Baldwin, Richard Quatier, and Merle Quatier, thereby discouraging mem- bership in the aforementioned Union, and labor organizations generally , the Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 4 By interfering with, restraining , and coercing its-employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication ] Piezo Manufacturing Corp. and District #15, International Association of Machinists. Case No P-CA-6367 December 10, 1959 DECISION AND ORDER On August 19,1959, Triad Examiner William F Scharmkow issued his Intermediate Report in this case, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a) (1) and (5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief 125 NLRB No 83 PIEZO MANUFACTURING CORP. 687 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Piezo Manufac- turing Corp., Staten Island, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Urging employees to report to the Respondent any employees participating in activities on behalf of District #15, International Association of Machinists, or any other labor organization. (b) Requesting employees to start a movement to form an inde- pendent employees' association, or other labor. organization. (c) Discharging, laying off, or otherwise discriminating against employees to discourage their exercise of the right to join a labor ,organization, or any other right guaranteed by Section 7 of the Act. (d) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with District #15, International Association of Machinists, as the exclu- sive representative of all its employees in the following appropriate unit: All production and maintenance employees of the Respondent employed at its Mariners Harbor plant, Staten Island, New York, excluding office clerical employees, professional employees, watchmen .and guards, and all supervisors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized by Section 8 (a) (3) of the Act. I See, e.g., Heat Timer Corp ., 124 NLRB 1256, with respect to the Section 8(a) (5) violation found herein. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, William A. Willock, Neil Hayes, and Vincent Reier- son immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (c) Make the foregoing persons, and Jacob Du Barry and Frank De Marco, whole for any loss of earnings each of them may have suffered, or may suffer, by reason of their layoff by the Respondent on January 23, 1959, to the extent and in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, or any other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in Staten Island, New York, copies of the notice attached hereto marked "Appendix." 2 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 2In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT urge employees to report to us any employees participating in activities on behalf of District #15, Intern a- PIEZO MANUFACTURING CORP. 689 tional Association of Machinists, or any other labor organization. WE WILL NOT request employees to start a movement to form an independent employees' association, or other labor organization. WE WILL NOT discharge, layoff, or otherwise discriminate against employees to discourage their exercise of the right to join a labor organization, or any other right guaranteed by Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with the above- named labor organization as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is : All production and maintenance em- ployees at our Mariners Harbor, Staten Island, New York, plant, excluding office clerical employees, professional employees, watch- men and guards, and all supervisors as defined in the Act. WE WILL offer Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, William A. Willock, Neil Hayes, and Vincent Reierson immediate and full reinstatement to their for- mer or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make the foregoing persons, and Jacob Du Barry and Frank De Marco, whole for any loss of earnings suffered by them as a result of their layoffs on January 23,1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. PIEZO MANUFACTURING CORP., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges, but the answer of the Respondent denies, that the Respon& ent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5 ) and Section 2(6) and (7) of the National Labor 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, 61 Stat. 136, in that: (1) On various dates during October 1958, the Respondent through its vice president, David R. Ligh, violated Section 8(a)( I) of the Act by interrogating its employees concerning their member- ship in, activities on behalf of, and sympathy with the Union; (2) on or about. January 23, 1959, the Respondent through its vice president, David R. Ligh, violated Section 8(a) (1) of the Act by urging, soliciting , and attempting to cause its employees to initiate, form, and organize a union for the purpose of representing. the Respondent's employees in collective bargaining with the Respondent, for the purpose of bargaining collectively with the Respondent in place of the Union, and for the purpose of discouraging employees from joining, assisting, and engaging in concerted activities on behalf of the Union; (3) on or about January 23, 1959, the Respondent violated Section 8(a)(3) and h (1) of the Act by laying off nine named employees and by since failing and refusing to reinstate all but two of them,. in order to undermine the status of the Union as exclusive bargaining representative and also because these employees had joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and mutual aid and protection, or because the Respondent believed that these employees had done so; and (4) on and since January 22, 1959, the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union as the exclusive bargaining representative of all the Respondent's employees in an appropriate unit of the Respondent's production and maintenance employees, excluding clerical and professional employees, watchmen and guards, and all supervisors as defined in the Act, although since January 15, 1959, the Union has been the representative for the purposes of collective bargaining of a majority of the employees in this appro- priate unit. Pursuant to notice, a hearing was held in New York City on May 25, 26, 27, and 28, 1959, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union appeared by counsel and were' afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon,the issues. At the conclusion of the hearing I heard oral argument by the General Counsel, but the Respondent and the Union waived oral argument, asserting that they would submit briefs. Since the close of the hearing, I have received a brief from the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Piezo Manufacturing Corp., is a Delaware corporation engaged at its principal office and place of business at Mariners Harbor, Staten Island, New York, New York, in the business of the manufacture, sales, and distribution of remote control equipment, gear boxes, fabricated and machine products, and related prod- ucts. In the year preceding the issuance of the complaint, the Respondent manufac- tured, sold, and distributed products of a value of more than $100,000, which were shipped from its plant in interstate commerce to States of the United Staten ,other than the State of New York. I find that the Respondent is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District #15, International Association of Machinists, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction By letter dated January 21, 1959, the Union informed the Respondent that it had' been authorized by the majority of the Respondent's production and maintenance employees to represent them for the purposes of collective bargaining and asked for a meeting to discuss formal recognition and the terms of a collective-bargaining agree- ment. At the time, the Union held the signed bargaining authorizations of 15 of the 25 production and maintenance employees which the Respondent then carried' on its payroll 1 in the concededly appropriate bargaining unit requested by the Union, 'The General Counsel and the Union dispute the inclusion In the appropriate unit of two maintenance employees , John Robinson and Alex Jones, who, although on the Re- PIEZO MANUFACTURING CORP. 691 i.e., all production and maintenance employees of Respondent employed at its. Mariners Harbor plant exclusive of office clerical and professional employees, watchmen and guards, and all supervisors as defined in Section 2 (11) of the Act. Hind that on January 21, 1959, the Union represented a majority of the Respond- ent's employees in this appropriate bargaining unit. When the Union's letter reached the Respondent's office on January 22, 1959, David R. Ligh, the Respondent's managing vice president, was in Montreal, Canada,. on a business trip but learned of the Union's letter during a telephone conversation with his secretary. He returned home that night. On the following afternoon, January 23, he laid off seven of the Respondent's production and maintenance em- ployees 2 and, upon their being joined in protest against the layoff by two other employees (Neil Hayes and Vincent Reierson), Ligh also laid off these two addi- tional men. Eight of the nine men (including Hayes and Reierson) had signed the Union's authorization cards.3 On January 26, 1959, the Union filed a petition for certification and, on January 29, 1959, it filed its unfair labor practice charge in the present case. On February 13, 1959, following the filing of its unfair labor practice charge, the Union withdrew its petition. Although the Respondent never replied in writing to the Union's request for recognition, Vice President Ligh told William Habert, the Union's organizer, when they met at the Respondent's plant on January 26 or 27, that the Respondent did not know whether it would recognize the Union since Ligh had no knowledge of whether the Union represented a majority of the employees. B. Evidence as to events preceding the layoffs According to Ligh's testimony, he had no knowledge of any organizational activi- ties among his employees until he received the Union's demand for recognition on January 22, 1959. However, Vincent Reierson, who had been employed by the Respondent as a packer and shipper since 1943, testified that in October 1958, at about the time that employees Wetmore and Serpico were soliciting their fellow employees' signatures on the Union's authorization cards,4 Ligh told him that he understood some of the employees were attempting to organize a union and asked Reierson to try to find out who these employees were. In his testimony, Ligh insisted that he knew nothing of the Union's organizational activity until January 22, 1959, and specifically denied that he asked Reierson or anyone else in October 1958, or at any other time, who might be engaged in organizational activities. Neil Hayes, who worked on the assembly of the Respondent's products, testified without contradiction that 2 or 3 weeks before the layoffs of January 23, 1959, Obie Parker, the Respondent's chief engineer, handed Hayes a letter which had been sent by the Union to Hayes at the Respondent's plant, and asked Hayes whether he was an organizer, to which Hayes laughingly replied, "I don't know any more about it than you do." On the afternoon of January 23, 1959, before the checks and layoff slips were handed out, Ligh called Hayes into his office. According to Hayes, Ligh said that, having received "a notice from the NLRB," he "knew there was a movement afoot" in the plant; that "as of now, I am a disinterested party. I can't say one thing one way or the other. I know we should have some sort of representation here. I am in favor of a company union. If you could talk to the men along these lines, we could spondent's payroll since some time in November 1958, have worked regularly on a renova- tion job on a building owned by the mother of David Ligh, the Respondent's vice presi- dent. Since their hire, these two men have worked at the Respondent's plant only on one Saturday in 1958, three Saturdays in January 1959, and a full week in the end of April or the beginning of May 1959. I would not include them in the appropriate unit. How- ever, their inclusion or exclusion would not affect the Union's majority in the unit as of January 21, 22, and 23, 1959, nor its loss of majority on the face of the layoffs on the afternoon of January 23, which are hereinafter discussed. 2 Jacob Du Barry, Frank De Marco, Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, and William A. Willock. 3 The only laid-off employee who had not signed a bargaining authorization was Du Barry. 4 Counsel for the Respondent points out in his brief that in his testimony Reierson fixed the time of his conversation with Ligh as being in the beginning of October or "some- wheres" between the 1st and 10th of the month, whereas the first of the union cards was signed on October 14, 1958. I cannot agree with the Respondent that this slight dis- crepancy, in itself, is of any significance in evaluating Reierson's testimony since Reierson did not purport to fix the time precisely. ,692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work this thing out and it would keep me from doing something I very much dis- like to do." Hayes further testified that he told Ligh that he (Hayes) was in no position to ask the men to start a company union because "I was getting my over- time. It was all right for me to talk that way, but everybody wasn't getting theirs"; and that Ligh then repeated his statement that, "I am going to have to do something I dislike to do." Ligh's version of this conversation differed from Hayes' version. According to Ligh, he had already decided on the layoffs and who were to be laid off, although he did not tell this to Hayes. Ligh testified that he merely told Hayes he was well satisfied with Hayes' work, that he reminded Hayes he had recently received a raise, and said that he was going to give Hayes "additional duties." According to Ligh, Hayes expressed pleasure that his work had been satisfactory, but asked Ligh, "What .about this Union business?" At this point, according to Ligh, Ligh told Hayes that he had received the Union's request for recognition; that the Respondent would not grant recognition "until such time as we had an election to determine just what was what"; "that the Kearny Machine Shop down in Rose Bank had an employee as- sociation where they originally had a national union and I understand that union organization worked out very well"; that Ligh "could have positively nothing to do with any organization that the employees wanted . couldn't interfere with it couldn't advise them, . . . couldn't do anything"; but that "Brewer's Drydock down the street had an employee association and also Procter & Gamble, which was .a short distance away, had their own employee association"; and that "if they [the Respondent's employees] wanted to get information, they could easily go down and see the shop steward.". C. The layoffs Friday was the end of the Respondent's workweek, although, in normal course, the employees did not receive their weekly pay until the following Wednesday. At about 3 p.m. on Friday, January 23, 1959, shortly after Ligh had spoken with Hayes, Foreman Edward Hett handed out layoff slips and wage checks to 7 of the 23 production and maintenance employees who were working at the plant,5 i.e., to machine operators Jacob Du Barry, Frank Wetmore, and William Willock; to weld- ers Frank De Marco and Frank Larson; and to helpers John Serpico and Raymond Loony.6 All of these men laid off, except Du Barry, had signed union authorizations. Shortly after receiving their layoff slips, the seven men went in to see Vice Presi- dent Ligh in his office where they were followed by John Serpico (the assembler) and Vincent Reierson (the packer and shipper). Wetmore asked Ligh for the rea- son for the layoffs and Ligh replied that it was an economic layoff-that the Re- spondent's business had fallen off and there was not enough work to keep the men. Wetmore asserted that the real reason for the layoffs was the Union's organizational activity, but Ligh denied this.? Hayes and Reierson entered the conversation. Hayes said, "Dave, that was a lousy trick you pulled. You may as well give me my layoff slip, too." And Reierson, after asking Ligh was it "a final layoff or not" and being told by Ligh that it was 5It will be recalled that of the 25 men then on the Respondent's payroll, 2 of them (Jones and Robinson) had, from the beginning of their employment, been working regularly on a renovation project not connected with the Respondent's business, and had worked at the plant only a few Saturdays. 0 In the course of his testimony as to his reasons for choosing these seven men for layoff rather than others, Ligh also gave testimony which was critical of the performance of Vincent Reierson, the packing and shipping employee. There is no evidence, however, that Reierson was given a layoff slip along with the seven men mentioned in the text. On the contrary, the only evidence as to Reierson's layoff was (as we shall see) his own testimony that he was laid off by Ligh later in the day when he and Neil Hayes joined the protest of the seven men who had received layoff slips. Furthermore, in his testimony, Ligh not only did not deny laying off Reierson during the course of this protest, but specifically described his decision concerning who should be laid off as his "final decision to lay off these seven men." [Emphasis supplied.] On this state of the record, it appears clear to me, and I therefore find, that Reierson was not one of the men whom Ligh originally de- cided to lay off and to whom Foreman Hett gave layoff slips, but that he was later laid off by Ligh in the course of his joining in the protest of the other men's layoffs. 7 The general findings made in this paragraph as to the conversation in Ligh's office, are based upon a composite of the consistent portions of the testimony of Ligh, Wetmore, Loony, Serpico, Willock, Reierson, and Hayes, the only witnesses who testified as to this conversation. PIEZO MANUFACTURING CORP. 693 final, said "Let's straighten out our old debts now." Ligh thereupon instructed his secretary to give Hayes and Reierson their checks and their layoff slips .8 Ligh testified that he insisted throughout this conversation that the reason for the layoffs was purely economic and that it had nothing to do with the Union's organiza- tional activities. Wetmore, however, testified that, in answer to his charge that the men were being laid off because they had been organizing, Ligh said, "You are not going to pin me down to anything like that, I don't want the NLRB on my neck. As far as I am concerned, it is an economic reason." Serpico testified that Ligh's reply to Wetmore's charge was: "I am laying you off for economic reasons, You are not going to pin me down to anything else but that." Loony testified that Ligh said that, "If there's going to be a union in here, I'm fight- ing for my life." According to Reierson, Ligh's statement was: "You fellows have my back against the wall and I'm going to fight with everything at my disposal." And Hayes testified that when Wetmore said he believed that the layoffs were the result of the employees' organizational activity, Ligh replied, in substance, "I don't care what you believe. I will fight any way that I know, tooth and nail. . . . I will not stand for any high pressure union in the plant here." None of the men laid off have been recalled to work except Du Barry and De Marco. Du Barry was rehired on February 2, 1959. Ligh explained Du Barry's recall on the ground that the Respondent needed somebody to run its large machines since "the two men that I had expected to work on a part-time basis at night refused to cross the picket line" which the Union and the laid-off employees had set up. Ligh similarly explained De Marco's recall on the ground that James Castellano, another welder who had been retained and who incidentally had not signed a union authoriza- tion, had also refused to cross the picket line. With these two exceptions and the hire of a new maintenance man shortly before the hearing in June 1959, the Re- spondent's working force has consisted only of the men retained by it at the time of the layoff on January 23, 1959. D. The reason given by the Respondent for the layoffs The Respondent's explanation that the layoffs of January 23, 1959, were merely a reduction of its force dictated by a decline in business, is based upon Vice President Ligh's testimony and his summaries of certain aspects of the Respondent's business both before and after the layoffs. The Respondent makes marine remote control equipment as its basic product, manufacturing the components in some cases and the entire systems in other cases. Some of this work is done on the basis of small orders for standard products which, in the period from August 1958 to January 1959, ranged each month from 25 to 30 orders totalling from $2,000 to $3,000. Ligh gave no figure or estimate for the man- hours required to fill these small orders in the period from August 1958 to January 1959, nor for any other representative or otherwise significant period prior to the January 1959 layoffs. In addition to these small orders, the Respondent performs work under contracts, which are let upon open, competitive bidding, for the manufacture of such equipment as hydraulic hatch covers for cargo holds, replacement parts for the Navy, electronic equipment, and, as Ligh put it, "a wide variety of almost anything that we can do in our shop." According to Ligh, these contracts varied from medium sized contracts ranging from $1,000 to $5,000, and "large contracts," such as an order for 16 sub- marine hatch covers which was received in the latter part of December 1958, or the beginning of January 1959, at a price of about $40,000. As in the case of the small orders, no man-hour figures were presented by the Respondent as a gauge to the production of the Respondent's plant under its various contracts either for the par- ticular period from August 1958 to January 1959, or for any other representative period before the layoffs of January 23, 1959. Instead, the Respondent submitted in evidence only a list of 6 Navy and 19 commercial contracts on which either the last shipments were made by the Respondent on various dates from December 19, 1958, to February 2, 1959, or the contracts were completed and the product held in stock. Other notations on this list show that the dates of the execution of these contracts ranged from March 27, 1958, to January 5, 1959. While the man-hours required on these "recently completed" contracts is shown for each contract on which a final shipment was made (totaling 4,857), none is shown for the items 8 These findings with respect to Hayes and Reierson are based upon their uncontradicted testimony. 535828-60-vol. 125- 45 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placed in stock and, even as to the man-hours given , there is no indication of the period or periods over which they were expended. Ligh testified that his practice has been to plan his business operations 6 months in advance on the basis of the work he knew he would have; that he knew as early as July and August 1958, that his orders were dropping off and that the orders which he did have would be completed around the first of the next year ; that he discussed all of this with Chief Engineer Parker and Foreman Hett ; that from August 1958 to January 1959, he made a series of trips to obtain business from the New York Shipbuilding Corporation at Camden , New Jersey , from shipbuilding companies in the Gulf Coast area , in Baltimore, Maryland, in Chester, Pennsylvania, and in Wilmington , Delaware, from the Navy, Martime Commission , Coast Guard, Army, and the British Naval Commission in Washington , and finally, on January 21, 1959, from the Royal Canadian Navy and various Canadian firms in Montreal and Ottawa ; that his salesman , Stanley Koolnis, made some of these trips with him and also other trips to Portland , Maine, Boston , Massachusetts , and Providence, Rhode Island, to obtain work in connection with the Bomark Guided Missile Program ; that the Respondent also "bid on hundreds of Gov't small business open bids"; and that, although Ligh was unable to say in dollar volume what work he was able to get between August 1958 and January 1959, it was "very little" and included only one "large contract," the contract for the 16 submarine hatch covers which has already been mentioned. It was in this setting, according to Ligh, that he conferred with Chief Engineer Parker and Foreman Hett between 11 a.m. and 1 p.m. on January 23 , 1959, and decided that they would have to cut their staff. Ligh testified that they considered the amount and types of work on hand and the qualifications of each of their employees , that they chose the best men for retention , and decided to lay off the others . There was some testimony by Ligh and the laid-off employees about beer drinking and crap shooting in or immediately outside the plant, both before and after notices had been given the employees to stop these practices , but this. evidence indicates that beer drinking and crap shooting were by no means limited to the employees whom Ligh decided to lay off. In addition , Ligh testified generally that much of the work on hand required the operation of the large machines in the machine shop and that the employees laid off, with the exception of Du Barry, had little, if any , experience with the Respondent on these large machines . In this connection, however, it is to be noted that, according to Ligh , he planned to have two machinists, Paul Stoeckel and Louis Nelson, operate the large machines at night . These two men had full-time jobs elsewhere, had previously worked at night on a part-time basis for the Respondent , but had not worked at all for the Respondent since July 26 (in the case of Stoeckel ) and August 2, 1958 (in the case of Nelson), and were therefore admittedly not on the Respondent's payroll on January 23 , 1959. According to Ligh, it was only when these two men refused to cross the picket line after the layoffs , that he recalled Du Barry on February 2, 1959, to perform the work he had planned for Stoeckel and Nelson. In explaining why he believed the staff, after its reduction through the layoffs, would be sufficient to meet his plant's production needs, Ligh submitted a number of summaries of the work on hand on January 23 , 1959, and the work thereafter performed by the reduced staff for the subsequent period of 16 weeks, i .e., from January 23 to May 16, 1959 . In presenting and explaining these statements, Ligh testified that, following the January reduction in staff, his production crew con- sisted of 13 men . Thus , with the reduction of the staff by 9 employees and 360 man-hours a week, the reduced staff of 13 men furnished 520 man-hours a week, which, according to Ligh, was not only sufficient for his anticipated needs, but also for his actual needs as shown by the plant's experience up to May 16, 1959. In computing his anticipated future man-hour requirements as of January 23, 1959, Ligh estimated in his summaries that the Respondent's work actually on hand on January 23, 1959, would require only 1,711 man-hours and that, with the weekly 520 man-hours available through his use of the reduced staff of 13 men, the work would take less than 4 weeks. In making this estimate of a total anticipated man-hour requirement of only 1,711 man-hours, however , Ligh did not include any estimate for any reasonable expectation for new small orders; nor did he include any estimate for five orders which he listed on his summary as "other orders not released for manufacture ." In both a footnote to his summary of business on hand on January 23, 1959, and in his testimony , Ligh did estimate, however, that I of these orders (the order for the 16 submarine hatch covers ) would require 5,000, man-hours. Thus, if this additional order alone were added , it increased the man- hour requirements to 6,711 hours and , according to the basis used by Ligh for PIEZO MANUFACTURING CORP. 695 his estimates, it would have increased the work available for his reduced 13-man staff from less than 4 weeks to approximately 13 weeks. And, as to the other four orders listed by Ligh as "not released for manufacture" as of January 23, 1959, no individual estimates of man-hour requirements is given, although the evidence shows that, in fact, two of them, like the hatch cover order, were released shortly after January 23, 1959, and entered production. In the summaries which he submitted concerning the Respondent's production in the 16-week period between January 23 and May 16, 1959, Ligh gave figures which, according to him, support his judgment that the 13-man staff was sufficient for the Respondent's purposes. By May 16, according to these summaries, the Respondent had completed all but 1 of the 19 orders which it had on hand and ready for pro- duction on January 23 and, in the case of the exception which it had not completed (an order for watertight doors), it had used 760 man-hours out of an estimated required total of 850 hours. In addition, 4,100 man-hours had been devoted toward the production of the submarine hatch covers which had been released for manu- facture after January 23. According to my computation from the figures made available by the Respondent, 5,725 man-hours had been used in the 16-week post- layoff period on this work alone. In addition, the Respondent's summaries indicate that another contract released after January 23 (for a followup mechanism, S.O. 2728) had been completed and 80 percent of still a third such contract (for rotary windows, S.O. 2496) had been performed. Finally, the Respondent's summaries for this 16-week period state that: In addition to above orders Piezo received 70 new orders for various products. These orders were manufactured by us and shipped. All orders are "ON SCHEDULE or ahead of schedule." While a complete breakdown of the man-hours expended on the various jobs between January 23 and May 16 was thus not made available by the Respondent, Ligh's summaries state that the total number of production man-hours was 8,748.76 man-hours, of which 1,181 hours were overtime and 7,567.76 hours were straight time. Of the overtime, 720.75 man=hours were spent in the large machine shop. The average total overtime for the entire plant was 73.75 hours per week for what amounted to 13.49 percent of the total production hours.9 In comparison, according to the Respondent's figures, the average weekly overtime for the preceding year had been 85.5 hours although the percentage of the total number of production hours represented by overtime had been only 9.35 percent. In a statement as to the status of its "Current Work in Progress" as of May 22, 1959, the Respondent listed 19 orders which it estimated would require a total of 2,266 man-hours. On the basis of 546 hours per week, its estimate was that, "This work will be completed in 5 weeks." Here again, the Respondent did not take into account the small orders which, according to Ligh, it expects to receive from month to month. Furthermore, of the 19 orders listed, 15 of them 10 (including 1 requiring 640 hours and another requiring 240 hours) were apparently new orders received in the single week which had passed since May 16, when (it will be recalled) it stated that the "new orders" which it had received since January 23 had all been manufactured and shipped. In addition, the 19 orders listed as still requiring 2,266 man hours as of May 22, 1959, do not include 600 hours which Ligh testified would be required on a contract for an underwater log system and which, according to the Respondent's summary of work available on May 16, had then been "Released for production [and] raw material rec'd." Nor do they include the man-hours yet to be applied to the completion of a contract for rotary windows (S.O. 2496) which, according to the Respondent's summary had only been 80 percent completed on May 16. E. Conclusions The fact that Ligh decided upon, and executed, the January 23, 1959, layoffs immediately upon learning of the Union's demand for recognition and without notice or warning to his employees, is in itself an extremely strong indication that the layoffs were intended to discourage, and if possible, defeat the organization of a The Respondent's basic figures show this to be the correct percentage, although the Respondent's summaries state that it was only 10.6 percent. 10 My reference is to the orders listed on Respondent's Exhibt No. 11 as S.O. Nos. 2595, 2742, 2749, 2761, 2766, 2770, 2771, 2787, 2788, 2803, 2808, 2809, 2810, 2815, and 2816. None of these orders appear in the summaries relating to May 16, 1959, and the period prior thereto. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's employees and relieve the Respondent of the necessity of bar- gaining with the Union. Upon my appraisal of the testimony of the various witnesses, I would also credit the testimony of Reierson as to his October 1958 conversation with Ligh, Hayes' testimony as to his conversation with Ligh in the afternoon of January 23, 1959, immediately before the layoffs, and the testimony of Reierson, Hayes, and the other laid-off employees as to their conversation with Ligh later in the afternoon. All of this testimony was convincingly given by these witnesses. Furthermore, it not only serves to explain Ligh's precipitate action in laying off more than a quarter and almost a third of his production staff, but also offers the only reasonable explanation which I have been able to find in the record, for Ligh's calling Hayes into his office between his 1 o'clock decision to lay off seven of the men and his 3 o'clock execution of the layoffs, and at that time admittedly suggesting to Hayes the possible formation of an independent em- ployees' association. In short, all of this evidence submitted by the General Counsel's witnesses points strongly to the conclusion that Ligh knew and disapproved of the employees' organizational activity at about the time it began, tried to learn through Reierson who the participants were, and then, upon receiving the Union's letter, first tried to have Hayes start a movement among the employees for an independent employees' association and, failing in this, laid off the seven men. When weighed against all this, Ligh's explanation of the layoffs as economic is not persuasive. That Ligh should have spent only 2 hours estimating his manpower needs for the next 6 months, determining which of his employees he could best lay off, and deciding, solely upon these economic considerations, that almost a third of his staff should immediately be laid off, is incredible. Even if it be assumed that the Respondent's business had fallen off to the extent that Ligh testified it had, there was obviously no need for the extreme haste with which Ligh acted in making such a drastic cut in his staff. There are also other reasons which lead me to reject Ligh's explanation of the layoffs as being economic rather than intimidatory of the employees' support of the Union as their bargaining agent. For, in some of the figures and other details, Ligh's explanation seems much too pat and perfect an explanation for a decision which he says he made in just 2 hours' time, while in other respects his evidence and figures are blurred by substantial, apparent omissions which, in my opinion, enabled him to picture the condition of the Respondent's business as being consid- erably worse than it actually was, both immediately before and since January 23, 1959. In addition, Ligh's testimony and his summaries raise a question in my mind as to whether in view of the percent of increase in overtime for the 16-week period immediately following January 23, 1959, Ligh would not, at least for an appreciable portion of that period, have found it more economical to retain the employees he laid off on January 23, and would have done so had he not been motivated in the layoffs by a desire to shake the confidence of the employees in their support of the Union and thus avoid collective bargaining. In my discussion of Ligh's evidence and thus avoid collective bargaining. In my discussion of Ligh's evidence and the general substance of the summaries submitted by him, I have already indicated the elements in this testimony and the summaries which lead me to believe that the entire, relevant picture of the Respondent's business has not been disclosed. Upon the foregoing considerations, I credit the testimony of Reierson, Hayes, and the other laid-off employees, despite Ligh's denials. Upon the credited testi- mony, I find and conclude that: (1) In October 1958, Ligh, in violation of Section 8(a)(1) of the Act, asked employee Vincent Reierson to try to find out which of the employees were par- ticipating in the Union's organizational campaign. (2) Before laying off the men on January 23, 1959, Ligh referred to the Union's demand for recognition and asked employee Neil Hayes to try to start a movement among the employees for an independent employee association; that, when Hayes refused, Ligh told him, "I am going to have to do something I dislike to do"; and that Ligh (and thus the Respondent) thereby sought to, and did, interfere with, restrain, and coerce their employees in the exercise of their organizational rights under Section 7 of the Act and committed a further violation of Section 8(a)(1). There remains the questions of whether, by Ligh's execution of the layoffs, immediately following his conversation with Hayes, the Respondent also violated Section 8(a)(1) and .(3) of the Act and, if so, whether it also further violated the Respondent's obligation to bargain with the Union under Section 8(a)(5), since the layoffs resulted in the loss by the Union of its majority among the employees. In my opinion, the evidence amply shows that the layoffs of the seven men on January 23, 1959, executed as they were immediately after Ligh's receipt of the PIEZO MANUFACTURING CORP. 697 Union's bargaining demand, were intended by Ligh to discourage and, if possible, to defeat the Union's organization of the Respondent's employees and relieve the Respondent of the necessity of bargaining with the Union. It is true that there is no evidence to warrant a finding that Ligh knew, or even had reason to believe, that these seven men had joined the Union or signed bargaining authorizations. As a matter of fact, Du Barry, one of these men who were laid off, had not signed a union authorization, although the other six had done so. But the layoff of so large a portion of the staff not only was likely to include at least some of the union adherents but, occurring as it did immediately upon the Respondent's receipt of the Union's bargaining demand, it could not have failed to shake the confidence of the employees in the Union as their bargaining agent. The normal, foreseeable consequence of the layoffs because of their timing was obviously to instill in the employees a doubt as to the wisdom of selecting the Union as their bargaining agent, and even a fear of the consequences if they should do so in the Board election which the Respondent apparently intended to insist upon. Under the circumstances, the layoffs interfered with, restrained, and coerced the employees in the exercise of their organization rights and their free choice of bargaining agent under Section 7 of the Act. Thus, whether the layoffs were or were not also a violation of Section 8(a)(3), they were clearly a violation of Section 8(a)(1). And the appropriate remedy in such cases wherein a layoff constitutes the unfair labor practice, also includes reinstatement and reimbursement for loss of earnings. Upon these consid- erations, I find that by laying off employees Jacob Du Barry, Frank De Marco, Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, and William A. Willock on January 23, 1959, the Respondent interfered with, restrained, and coerced its employees in the free exercise of their rights under Section 7 of the Act and thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. Although only these seven men were laid off in accordance with Ligh's initial decision on January 23, 1959, Neil Hayes and Vincent Reierson invited their own layoffs when they joined the others' protest in Ligh's office, and Ligh laid them off, too. The Respondent, directing its attention only to Hayes (although I have found that Reierson, too, was involved in essentially the same siutation), argues that Hayes quit and was not laid off. In my opinion, however, both Hayes' and Reierson's terminations were connected with, and were inseparable from, the layoffs of the other seven men which I found were illegal, and were not in any real sense voluntary. I find that Hayes and Reierson, like the other seven employees, were laid off, and that their layoffs were also violative of Section 8(a) (1) of the Act. In the beginning of this report, I found upon the evidence that on January 21, 1959, the Union requested the Respondent to bargain with it as the representative of the Respondent's production and maintenance employees; that, at that time, the Union held the signed bargaining authorizations of 15 of the 25 production and maintenance employees on the Respondent's payroll; that the Union therefore rep- resented a majority of the employees in an appropriate bargaining unit consisting of all the production and maintenance employees of Respondent employed at its Mariners Harbor plant exclusive of office clerical and professional employees, watchmen and guards, and all supervisors as defined in Section 2(11) of the Act; and that the Respondent did not answer the Union's bargaining request in writing, although on January 26, 1959, 3 days after the layoffs, the Respondent's vice president, David Ligh, informed the Union's organizer that the Respondent did not know whether it would recognize the Union since it had no knowledge of whether the Union represented a majority of the employees. It is apparent that the Union lost its majority among the Respondent's employees as a result of the layoffs of January 23, 1959, which I have found constituted unfair labor practices on the part of the Respondent. I therefore find and conclude that the Respondent refused to bargain in good faith with the Union as the exclusive bargaining representative of the Respondent's employees in an appropriate bargain- ing unit, on January 23, 1959, and thereby committed an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 11 Franks Bros. Company v. N.L.R.B., 321 U.S. 702. 698 V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act on January 23, 1959, by laying off Jacob Du Barry, Frank De Marco, Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, William A. Willock, Neil Hayes, and Vincent Reierson, and has since reinstated only Jacob Du Barry and Frank De Marco on February 2, 1959, and February 8, 1959, respectively. I will recommend that the Respondent offer each of the seven of these laid-off employees who have not been reinstated, imme- diate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole (in accordance with the formula set out in F. W. Woolworth Company, 90 NLRB 289) for any loss of pay which he may have suffered by reason of his layoff by the Respondent, by payment to him of a sum of money equal to that which he normally would have earned as wages from January 23, 1959, to the date of the Respondent's offer of reinstatement, less his net earnings during said period. I will also recommend that the Respondent make Jacob Du Barry and Frank De Marco whole for any loss of pay which they may have suffered by reason of their layoff by the Respondent, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from January 23, 1959, to the date of his reinstatement by the Respondent, less his net earnings during said period. It will also be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts due as backpay. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, 1 make the following: CONCLUSIONS OF LAW 1. District #15, International Association of Machinists, is a labor organization within the meaning of the Act. 2. The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by: (a) Urging one of its employees to inform it of those employees of the Respond- ent who were participating in organizational activities on behalf of the above-named Union. (b) Requesting another of its employees to attempt to start a movement among the employees to form an independent employees' association. (c) Laying off 9 of its 25 production and maintenance employees (viz, Jacob Du Barry, Frank De Marco, Frank Larson, Raymond C. Loony, John J. Serpico, Frank Wetmore, William A. Willock, Neil Hayes, and Vincent Reierson) on Janu- ary 23, 1959, following the receipt by the Respondent on January 22, 1959, of a claim by the above-named Union that it represented a majority of the Respondent's employees in the appropriate production and maintenance unit hereinafter described, and the Union's request that the Respondent bargain with it as the exclusive bar- gaining representative of these employees. 3. All production and maintenance employees of the Respondent employed at its Mariners Harbor plant, exclusive of office clerical and professional employees, watchmen and guards, and all supervisors as defined in Section 2(11) of the Act, have constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named Union was, on or about January 21, 1959, and at all material times since that date has been, the exclusive representative of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and since January 23, 1959, to bargain collectively with the above-named Union as the exclusive representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Recommendations omitted from publication.]